STATE OF NEW JERSEY v. MABEL HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MABEL HERNANDEZ,

Defendant-Appellant.

______________________________

August 19, 2016

Submitted August 15, 2016 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 5059.

Thomas P. DeVita, attorney for appellant.

CameliaM. Valdes,Passaic County Prosecutor, attorneyfor respondent (Christopher W.Hsieh, ChiefAssistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the Law Division's April 16, 2014 order entered after a trial de novo, finding her guilty of driving while intoxicated in violation of N.J.S.A. 39:4-50. We affirm.

On October 8, 2012, defendant and a male passenger were involved in an automobile accident in Paterson. Defendant suffered head and facial injuries and was transported by ambulance to a hospital, where her blood was drawn without a warrant. She was issued a summons for careless driving and driving while intoxicated. Defendant exercised her right to a trial on the issue of whether she had been operating the vehicle but stipulated a blood alcohol reading of .198 in Paterson Municipal court on February 26, 2013. The State called Trooper Steven Spitaleri who testified that defendant was already in an ambulance when he arrived at the scene. The trooper testified that he questioned defendant about the accident and that she admitted to driving the vehicle. The trooper questioned the male passenger who also told him that defendant was the driver. The trial was continued to April 9, 2013, at which time the prosecutor and defendant's attorney represented that defendant planned to enter a guilty plea.

Upon questioning by the municipal judge, defendant indicated that she had been drinking on the night in question, but denied that she was operating the vehicle at the time of the accident. The trial continued with the State calling Paterson Police Officer Novar Vidal. Officer Vidal testified that when he arrived at the scene of the accident, defendant was behind the steering wheel of the disabled car, had suffered head and facial injuries, and indicated (in Spanish) that she was the operator of the vehicle. Officer Vidal also indicated that the male passenger denied being the driver.

Defendant testified that she had been drinking alone in her home on the day in question and she and her friend decided to go for coffee. Defendant testified that she was initially seated in the passenger's seat of her own car but that after the accident her friend told her she "can't be where the cars are at, so he put me in the driver's seat, since I was drinking. He didn't want me to be near the cars in the road." She also explained that she admitted that she was the driver to Officer Vidal because she was drunk.

After considering the testimony presented, the municipal judge found both officers' testimony to be credible and defendant's testimony was not credible. The judge found defendant guilty of driving while intoxicated and careless driving. The municipal court imposed a two-year license suspension, a suspended 30-day term in county jail, and various fines and penalties.

Defendant filed a de novo appeal to the Superior Court asserting that the State had not met its burden of proof beyond a reasonable doubt and that the warrantless blood draw at the hospital violated defendant's rights under the Fourth Amendment. Upon de novo review, the court found defendant guilty of driving while intoxicated and careless driving beyond a reasonable doubt and imposed the same sentence as the municipal court. This appeal followed.

On appeal defendant argues

APPELLANT'S FOURTH AMENDMENT RIGHTS WERE VIOLATED AS THE ARRESTING OFFICER DID NOT OBTAIN A WARRANT TO DRAW APPELLANT'S BLOOD NOR WAS HER CONSENT OBTAINED. THEREFORE, THE RESULTS OF THE APPELLANT'S BLOOD TEST UNDER CURRENT LAW SHOULD NOT HAVE BEEN ADMISSIBLE.

On appeal, we must determine if there is sufficient, credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). Just as the Law Division is not as well situated as the municipal court to determine credibility, neither is the Appellate Division, and thus we do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470 (1999). Indeed, we do not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615, (1998). We note, however, that the"trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Relying upon Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), defendant asserts that the blood alcohol reading taken in this case is inadmissible because the draw occurred with no warrant and without consent.1 We disagree.

Defendant did not raise the issue of the lack of a warrant or lack of consent to the blood draw in the municipal court proceeding. In the de novo Law Division proceeding, defendant raised the McNeely issue for the first time. The judge determined that at the time in question, under New Jersey law, McNeely was considered prospective, and the officers herein were acting lawfully when they drew defendant's blood. The judge declined to apply McNeely because we had held that it was not retroactive inState v. Adkins, 433 N.J. Super. 479, 493, (App. Div. 2013) [hereinafter Adkins I], rev'd andremanded, 221 N.J. 300 (2015). In State v. Adkins, 221 N.J. 300 (2015) [hereinafter Adkins II], our Supreme Court found that McNeely's "totality of the circumstances analysis would be given pipeline retroactivity to all blood draws from suspected drunk drivers." State v. Jones, 441 N.J. Super. 317, 320 (App. Div. 2015) (citing AdkinsII, supra, 221 N.J. at 317). The remedy here would be to remand the matter for a determination of the appropriateness of the officer's actions under all the circumstances. Such an exercise is unnecessary, because we do not find a remand to consider the exigent circumstances necessary.

Defendant, through counsel, stipulated to the admission of her blood test results at trial. Moreover, she conceded the element of intoxication by contesting only the issue of operation of the vehicle at trial. Stipulations made in a judicial proceeding "are binding upon those who make them and those whom they lawfully represent, and also upon the trial and appellate courts, in the absence of any valid ground or reason for refusing enforcement." Stalford v. Barkalow, 31 N.J. Super. 193, 199, (App. Div. 1954) (quoting 50 Am. Jur. 610 9). "As a general rule, the parties are held to their stipulations and the consequences thereof[.]" In re Robinovitz, 102 N.J. 57, 61, (1986) (citing Negrotti v. Negrotti, 98 N.J. 428, 432 (1985)).

Defendant asserts that the transcript does not demonstrate defendant's understanding of the stipulation or whether she was ever counseled regarding the stipulation. However, defendant does not assert that she was unaware, misled, or coerced regarding this issue. Moreover, the transcript indicates that not only did defendant's attorney agree with the State that the only issue at trial was whether defendant was the operator of the vehicle, but also that defendant herself indicated as much when she refused to enter a guilty plea, saying "Yes, I was drinking, but I'm not -- I wasn't driving."

Further, both the municipal court judge and the trial judge based their findings on the credibility of the testifying officers. Defendant herself testified that at the time of the accident she was drunk. Defendant's testimony that she was not driving was rejected in both proceedings. Defendant cannot now assert arguments she waived.

Affirmed.

1 The issue of defendant's consent was not raised at trial.